Withholding Palestinians’ remains not befitting Israel

Caretaker Defense Minister Naftali Bennett, perhaps trying to maximize his time in office, has offered up discarded ideas on security that put Israel in the position of violating human rights and dignity.

Israel’s political right is convinced it has the solution to terrorism and that implementing it will wipe out, once and for all, the security threats the country faces without making peace with the Palestinians. Their would-be solutions have encompassed a variety of ideas, including instituting the death penalty for convicted terrorists, demolishing the family homes of assailants captured or killed while committing terrorist acts, sealing off attackers' homes, and to top it off, threatening to withhold the bodies of perpetrators from their families.

Israel’s caretaker defense minister, Naftali Bennett, appointed Nov. 10 after eyeing the post for several years, has probably asked himself how he can make his mark in the short time at his disposal, before a new government is formed and he finds himself out of a job. This appears to explain why he declared on Nov. 27 that Israel would no longer return the bodies of assailants to their families unless the Palestinians hand over the remains of two Israeli soldiers killed in Gaza. An exception for the bodies of minors might be considered, Bennett said.

Bennett’s idea is neither original nor new. It has been debated and discarded several times, even though, according to Israel’s interpretation, it does not violate international law.

Over the years, politicians primarily from the hawkish side of the political map, though not solely, have sought to promote “absolute solutions” to the scourge of terrorism. The army and Shin Bet have generally opposed their ideas as being ineffective in terms of deterrence as well as potential triggers for violence among the Palestinians.

For example, the death penalty could encourage the kidnapping of Israelis to be held hostage as bargaining chips. Home demolitions generally result in the immediate rebuilding of them and financial compensation by Palestinian authorities to the residents. Refusing to hand over bodies motivates similar conduct by the other side. That said, politicians believe they need to be seen as taking action, especially when they prefer to avoid diplomatic negotiations. In this context, withholding bodies looks like the easiest step one could take.

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In late 2016, Israel’s Security Cabinet sought to regulate, once and for all, the issue of returning the bodies of Hamas members involved in attacks against Israelis. On Jan. 1, 2017, it decided that the bodies could be held as bargaining chips. The Supreme Court, ruling on a petition against the government’s decision, rejected it in December 2017, with two of the three justices ruling that no law authorized the government to hold bodies as bargaining chips.

In the majority opinion, Justice Yoram Dantziger wrote, “[Successive rulings hold that] the right to human dignity also provides for the rights of the dead and his family to bring the body to dignified and proper burial.… These rights have been recognized in rulings unrelated to the identity of the dead.” The justices noted that if Israel wants to hold on to remains, the Knesset would need to pass a law to that effect while meeting the legal standards set by Israeli and by international law.

The government of Prime Minister Benjamin Netanyahu was unwilling to accept the ruling — with hard-line ministers, Bennett among them, harshly criticizing it — and therefore asked the court to revisit the issue. The court agreed and scheduled a hearing before a seven-member panel. In September 2019, the justices reversed the court’s previous ruling in a 4-3 opinion, allowing Israel to keep the bodies. The court based its ruling on emergency measures adopted in 1945 by British Mandate authorities as part of their fight against terrorism by Jewish underground organizations opposed to British rule. These measures have since been incorporated into Israeli law with certain amendments. The justices ruled that the emergency measures were “intended to authorize the military commander to refrain, out of considerations of public safety and security, from handing over bodies to family members.”

The new decision also met with extensive criticism, mostly because the definition of “public safety and security” was said to be open to broad interpretation and could serve the purpose of any government seeking a tool by which to hold on to remains.

The bodies of enemy combatants are held in special cemeteries in Israel. Their burial is temporary, based on the assumption that the bodies will eventually be returned to the families. Bennett’s decision could result in delaying returns, but would not change the overall situation.

Bennett is one among a group of people who view a diplomatic resolution to the conflict with the Palestinians as surrender and therefore out of the question. The alternative he has been preaching for years, while lambasting Netanyahu’s policies as being soft, is an all-out military clash with Hamas and Islamic Jihad in Gaza along with annexation of Area C of the West Bank. Bennett has repeatedly argued that Area C, which constitutes some 60% of the West Bank, should be under Israeli sovereignty, which is in complete contradiction of the 1995 interim agreement with the Palestinians designating it as part of an autonomous Palestinian area where the Palestinian Authority bears responsibility for the Palestinians living there, but not territorial authority as long as Israel maintains forces there.

The idea of withholding the bodies of Palestinian assailants from their families is unrelated to annexation or to Israel's occupation of the West Bank. Rather, Bennett is possibly beginning to realize the narrow limits of his mandate. Beginning in 2001, when the late Ariel Sharon took office as prime minister, many Israeli defense ministers, with the exception of Ehud Barak and Moshe Ya’alon, have been relegated to minor roles in the decision-making process on security matters. Indeed, from the minute Bennett took office, he has appeared in photos at security-related events as Netanyahu’s assistant. His room for maneuver apparently extends only as far as bringing up old ideas that no one in government will oppose.

The victim in all this is Israel’s image, which is being undermined by useless government decisions that portray the state as violating human rights, equating Israelis with our enemies. They also make it easy for anyone seeking to boycott the Middle East's only democracy, which should be adhering to international norms, not ignoring them.